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Institutional Religious Freedom: an Overview and Defense

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Institutional Religious Freedom: an Overview and Defense religions Article Institutional Religious Freedom: An Overview and Defense Paul Marshall 1,2 1 Institute for Studies of Religion, Baylor University, Waco, TX 76706, USA; [email protected] 2 Religious Freedom Institute, Washington, DC 20003, USA Abstract: The idea of institutional religious freedom has become increasingly controversial, especially in the United States, and pressure for such freedom has been growing. The notion that institutions, including commercial ones, can have religious freedom rights has been described as unprecedented. However, the notion of such religious freedom has deep historical roots in a wide range of settings, is deeply intertwined with the growth of free societies, and is tied to the nature of religions themselves. This also applies to religious commercial institutions, which are far more widespread than commonly recognized. I focus particularly on what is it about such institutions that needs protecting and emphasize that what is central is the particular practice that typifies the organization. It needs the freedom to be what it is and to live out a religious commitment. If this calling is denied or subverted, then the institution loses its raison d’être. One of the principal reasons for forbidding government discrimination on matters such as religion is precisely so that private institutions will be able to appropriately employ staff and carry out policies according to their own particular beliefs as to what supports their distinctive mission. Governmental neutrality is intended to be a foundation for a lively and diverse societal pluralism, not for society to become a mirror of the government itself. Keywords: religious freedom; rights; institutions; organizations; for profit; jurisdiction; vocation Citation: Marshall, Paul. 2021. Institutional Religious Freedom: An Overview and Defense. Religions 12: 1. Introduction 364. The idea of institutional religious freedom has become increasingly controversial and https://doi.org/10.3390/rel12050364 confused in recent years, especially in the United States, and pressure for such freedom has been growing. The notion that institutions and organizations, including commercial Academic Editors: Timothy Shah ones, can have rights has been described as outlandish and unprecedented. Much of and Nathan A. Berkeley the controversy relates to the still common American supposition that rights and their concomitant freedoms can apply only to individuals. Contentious U.S. Supreme Court Received: 20 April 2021 Accepted: 12 May 2021 decisions, such as Citizens United and Hobby Lobby, have also contributed to widespread 1 Published: 20 May 2021 suspicion about the rights and freedoms of institutions. Given this situation, I will in this paper attempt to give an overview and defense, with Publisher’s Note: MDPI stays neutral historical and contemporary examples, of the roots of institutional religious freedom, its with regard to jurisdictional claims in nature and extent, and what particularly needs to be protected for these institutions in published maps and institutional affil- terms of competence and vocation. I argue that one of the principal reasons for forbidding iations. government discrimination on matters such as religion is precisely so that private insti- tutions, and not only religious ones, will be able to appropriately employ staff and carry out policies according to their own particular beliefs as to what supports their distinctive mission. As Laborde(2017, p. 125) puts it: “the state should be secular so that citizens do not have to be.” Governmental neutrality is intended to be a foundation for a lively Copyright: © 2021 by the author. Licensee MDPI, Basel, Switzerland. and diverse societal pluralism, not for society to become a mirror of the government itself This article is an open access article (McConnell 2020). distributed under the terms and One key issue on this topic has been growing dispute and uncertainty over the very conditions of the Creative Commons nature of rights themselves, so I will seek to address that first (Rhodes 2018; Moyn 2019). Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/). Religions 2021, 12, 364. https://doi.org/10.3390/rel12050364 https://www.mdpi.com/journal/religions Religions 2021, 12, 364 2 of 27 2. Rights Despite very stiff competition, the notion of rights is perhaps the most confused concept in our political vocabulary. Human rights are the most common way of addressing normative issues in politics worldwide and are central to many modern theories of ethics, of politics and to many laws. However, the varied types of rights—including but not limited to human rights, natural rights, civil rights, moral rights, subjective rights, and legal rights—are often conflated when, in fact, each can refer to quite distinct entities and have few direct connections (Marshall 1992, pp. 661–76). Within each of these categories, there are many further possible subdivisions. For instance, Hohfeld(1919) developed a very complex fourfold distinction of rights as privileges or liberties, claims, powers, and immunities. Among international human rights treaties, the International covenant on Civil and Political Rights (ICCPR) subjects its rights guarantees to different limiting conditions; some are non-derogable while others are derogable under certain emergency conditions. The International Covenant on Economic, Social and Cultural Rights presents its rights as necessary goals rather than as the limiting conditions that predominate in the ICCPR. The rights that stem from government restraints can be enacted by almost any functioning government, whereas there may be legitimate reasons why a government cannot fulfill other economic or political rights at a particular time (Marshall 2020a). Indeed, the very word right, especially in the United States, often loses specific content and becomes merely a general term implying approval or disapproval, commendation or criticism. For instance, I could say “you have no right to speak to me like that,” meaning that you are wrong to do so, without implying that you have no legal right to insult me. Something desirable becomes treated as a right and something undesirable as a no-right. Additionally, within current political battles, opponents usually vie to appropriate the mantle of rights for their own position. As Sumner(1987, p. 8) pointed out: “it is the agility of rights, their talent for turning up on both sides of an issue, which is simultaneously their most impressive and their most troubling feature. Clearly, interest groups which agree on little else agree that rights are indispensable weapons in political debate.” In Ronald Dworkin’s terms, rights are “trumps”, and it will not help you to simply have high cards of your own, such as fairness, justice, equity, or propriety: you need your own trump to beat a trump. In this situation, rights are especially potent rhetorical weapons: “if one interest group has built its case on an alleged right none of its competitors can afford not to follow suit ... they will tend to proliferate and to escalate” (Sumner 1987). Such proliferation and escalation is apparent throughout the world, and especially in the United States. As a result, despite widespread emphasis on rights, there is little clarity about what we mean or should mean when we discuss issues related to rights, and this has worsened when the differences over institutions are added. 3. Historical Institutional Rights In the United States, the emphasis on individual rights has resulted in what Glendon (1991, pp. x–xi, 14) describes as an “excessive homage to individual independence and self- sufficiency,” and a focus on the “individual and the state at the expense of the intermediate groups of civil society” (Frohnen and Grasso 2009). This, in turn, makes it “extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed ... For individual freedom and the general welfare alike, depend on the condition of the fine texture of civil society—on a fragile ecology for which we have no name” (Glendon 1991, pp. 109–10).2 Even Ignatieff(2003), who holds that all rights are finally individual, cautions that an exclusive focus on individual human rights as the source of political norms can become idolatry. Here, I will focus on legal rights and argue that they may be held by institutions in terms of self-definition, self-governance, and self-directed action and expression. In the West, analogous rights have been held by institutions for millennia. Some of these, of Religions 2021, 12, 364 3 of 27 course, have been subordinate political entities, such as cities, towns, villages, and colonies that were granted charters to exercise rights and powers or were otherwise founded on a covenant and oath (Berman 1983, p. 393). However, such rights have been and are held by more than political entities. One prime example is, of course, the Church, which has had the right to own land, carry out ecclesiastical trials, choose or appoint leaders, determine doctrine, grant academic credentials, run hospitals and schools, and perform multifarious functions related to the lives of its members or constituents. As Berman(1983, pp. 268–69) wrote: “The competition between the ecclesiastical and the secular court had a lasting effect on the Western legal tradition. Plural jurisdiction and plural legal systems became a hallmark of Western legality ... Underlying the
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